IMPORTANT POINT
The central legal point established in the judgment is the requirement for the testimony of the prosecutrix to be reliable and of a sterling quality for a conviction under the POCSO Act. The judgment also clarifies the interpretation of the provisions of the POCSO Act, emphasizing the need for manipulation for penetrative sexual assault and distinguishing between touch and manipulation under the Act.

JUDGMENT

Amit Bansal, J. - The present appeal has been filed for setting aside the judgment of conviction and the order on sentence, both dated 28th October, 2020, passed by the learned Additional Sessions Judge (POCSO Act), Central District, Tis Hazari Courts, New Delhi.

2. Vide judgment of conviction, the appellant was convicted for the offences punishable under Section 376 of the Indian Penal Code, 1860 (IPC) and Section 6 of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act). Vide order on sentence, the appellant was sentenced to rigorous imprisonment for a period of ten years for the conviction under Section 6 of the POCSO Act and to pay a fine of Rs.5,000/-. No sentence was awarded to the appellant under Section 376 of the IPC in view of Section 42 of the POCSO Act.

3. The brief facts of the case as set up by the prosecution are as follows:

3.1. On 8th August, 2016, a PCR call was received by the police from the father of the victim, regarding sexual assault on his daughter, who was aged six years at the time of the incident. Information was recorded and the police arrived at the residence of the victim.

3.2. The victim narrated to the police that on 5th August, 2016, when she had gone for tuition, the appellant, who is the brother of her tuition teacher, touched her anus with his finger, and it caused her severe pain. The victim informed her mother about the incident at the tuition and the resulting pain.

3.3. The victim along with her parents and a police official went to the Aruna Asaf Ali Hospital, where her medical examination was conducted and the MLC (Exhibit PW-2/B) was prepared.

3.4. Thereafter, the police recorded the statement of the victim and prepared a Rukka on 8th August, 2016 for registration of the FIR. Based on the information provided in the Rukka, the FIR No.171/2016 under Section 376 of the IPC and Section 6 of the POCSO Act was registered at Police Station Lahori Gate on 9th August, 2016.

3.5. On the same date, the statement of the victim under Section 164 of the Code of Criminal Procedure, 1973 (CrPC) was recorded before the learned Metropolitan Magistrate, Tis Hazari Courts, New Delhi.

3.6. The appellant was arrested on 9th August, 2016 and subsequently, after investigation, the chargesheet was filed.

4. During trial, sixteen witnesses were examined by the prosecution, including the victim (PW-2), father of the victim (PW-6), mother of the victim (PW-7), Dr. Surinder Kumar (PW-4), Dr. Sandeep Kumar (PW-11), Dr. M. Rao (PW-10), Dr. Kuldeep (PW-8), Constable Mukesh Kumar (PW-9), Police Sub Inspector Akanksha (PW-12), Duty Office Subhash (PW-3), Duty Officer ASI Panwati (PW-1), Physical Education teacher of the victim (PW-5) and Sub Inspector Seema (PW-13). Statement of the appellant denying evidence and claiming innocence was recorded under Section 313 of the CrPC. The sister of the appellant, Ankita, who was the tuition teacher of the victim, deposed as DW-1.

5. The Sessions Court after examining the witnesses, analysing the evidence and hearing the arguments convicted the appellant for the offences under Section 376 of the IPC and Section 6 of the POCSO Act.

6. Counsel appearing on behalf of the appellant has made the following submissions:

i. There are material contradictions and improvements in the statements of the victim. Whereas, the victim in her statements in the MLC as well as under Section 161 of the CrPC stated that the appellant touched her anal region from above her pants, however, in her statement under Section 164 of the CrPC, the victim stated that the appellant inserted his finger and caught her by the neck and threatened her. During her deposition before the Trial Court, the victim stated that the appellant had cut her anal region with his fingernails.

ii. The Trial Court has convicted the appellant based solely on the inconsistent testimony of the victim and the same has not been corroborated by any independent witnesses or medical evidence.

iii. There are serious lapses in t